Citation Nr: 0715390
Decision Date: 05/23/07 Archive Date: 06/01/07
DOCKET NO. 02-10 759A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
1. Entitlement to service connection for a back disability.
2. Entitlement to service connection for a pelvic bone
disability.
3. Entitlement to a higher initial rating, in excess of 30
percent, for migraine headaches.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
R. E. Smith, Counsel
INTRODUCTION
The veteran had active military service from June 1992 to
January 1997.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a August 2001 rating decision by the
Department of Veterans Affairs (VA) Houston, Texas Regional
Office (RO), which denied entitlement to service connection
for a back disability and a pelvic bone disability, and also
granted service connection and an initial rating of 10
percent for migraine headaches. In December 2002, the RO
increased the disability rating for the veteran's service
connected migraine headaches from 10 percent to 30 percent
disabling, effective from the February, 2001 date of service
connection for that disorder.
In April 2005, the veteran and her witness appeared at the RO
and offered testimony in support of the veteran's claims
before the undersigned. A transcript of the hearing
testimony has been associated with the veteran's claims file.
This case was previously before the Band in July 2005 it was
remanded to the RO for further development. The case has
since been returned to the Board and is now ready for
appellate review.
FINDINGS OF FACT
1. A chronic back disorder is not shown to be the result of
events in service.
2. There is no showing that the veteran has a diagnosis of a
pelvic bone disability.
3. The veteran's migraine headaches are not shown to be
accompanied by frequent, completely prostrating attacks
productive of severe economic inadaptability.
CONCLUSIONS OF LAW
1. A back disability was not incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §
3.303 (2006).
2. A pelvic bone disability was not incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West
2002); 38 C.F.R. § 3.303 (2006).
3. The criteria for a rating in excess of 30 percent for
migraine headaches have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 2002); 38 C.F.R. Part 4, §§ 4.1, 4.7, 4.124a,
Diagnostic Code 8100 (2006)
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159
(2006). The notice must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." Pelegrini v. Principi, 18
Vet. App. 112 (2004).
Here, the RO sent correspondence in March 2001, September
2003, August 2005, and November 2005, rating decisions in
August 2001 and December 2002; a statement of the case in
April 2002; and supplemental statements of the case in
December 2002 and December 2004. These documents discussed
specific evidence, the particular legal requirements
applicable to the claims, the evidence considered, the
pertinent laws and regulations, and the reasons for the
decisions. VA made all efforts to notify and to assist the
appellant with regard to the evidence obtained, the evidence
needed, the responsibilities of the parties in obtaining the
evidence, and the general notice of the need for any evidence
in the appellant's possession. The Board finds that any
defect with regard to the timing or content of the notice to
the appellant is harmless because of the thorough and
informative notices provided throughout the adjudication and
because the appellant had a meaningful opportunity to
participate effectively in the processing of the claims with
an adjudication of the claims by the RO subsequent to receipt
of the required notice. There has been no prejudice to the
appellant, and any defect in the timing or content of the
notices has not affected the fairness of the adjudication.
See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on
other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically
declining to address harmless error doctrine); see also
Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has
satisfied its duty to notify the appellant and had satisfied
that duty prior to the final adjudication in the November
2006 supplemental statement of the case.
In addition, all relevant, identified, and available evidence
has been obtained, and VA has notified the appellant of any
evidence that could not be obtained. The appellant has not
referred to any additional, unobtained, relevant, available
evidence. VA has also obtained multiple medical examinations
in relation to these claims. Thus, the Board finds that VA
has satisfied both the notice and duty to assist provisions
of the law.
I. Service Connection
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty, or for aggravation of a pre-existing injury
suffered or disease contracted in line of duty. 38 U.S.C.A.
§§ 1110; 38 C.F.R. § 3.303. The law also provides that
service connection may be granted for any disease diagnosed
after discharge when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Service connection connotes many factors, but basically, it
means that the facts, as shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service, or if preexisting such
service, was aggravated therein. 38 U.S.C.A. § 1110.
If a condition noted during service is not determined to be
chronic, then generally a showing of continuity of
symptomatology after service is required for service
connection. 38 C.F.R. § 3.303(b).
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
A. Back Disability
In hearing testimony and statements on file, the veteran
contends that she has a back condition resulting from her
military service. Specifically, the veteran contends that
she had the onset of chronic back pain in service that has
continued since service.
In order to prevail on the issue of service connection on the
merits, there must be medical evidence of (1) a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the present disease
or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999).
The United States Court of Appeals for the Federal Circuit
(Federal Circuit) has held that a veteran seeking disability
benefits must establish the existence of a disability and a
connection between service and the disability. Boyer v.
West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).
A review of the contemporaneous service medical records does
not reveal findings referable to a chronic low back disorder.
The veteran's service medical records show that in March 1993
she was evaluated and treated for complaints of back pain,
which were diagnostically assessed as a back strain. On a
follow-up evaluation three days later for continued
complaints of back pain, musculoskeletal low back pain was
diagnosed. In March 1996, the veteran again presented with
complaints of back pain, which she reported had been going on
for the last few months. It was noted that the veteran had
not experienced any trauma or weight lifting. Examination of
the back revealed a normal lordic curvature and full range of
motion. Muscular skeletal strain was diagnosed. In early
July 1996 the veteran was noted to have a history of mid and
lower back strain and attended "back school." Following
completion of this school the veteran was noted to have no
present complaints of back pain. Resolving mechanical back
pain was the diagnostic assessment. On the veteran's
December 1996 medical examination for service separation a
clinical of the veteran's musculoskeletal system to include
her spine, found no abnormalities. On a contemporaneous
report of medical history, the veteran reported a history of
recurrent back pain noted by a reviewing physician to be
musculoskeletal in nature.
Post service the veteran underwent a service department
examination in July 1999 for affiliation with the United
States Navy Reserve. In a report of medical history, the
veteran reported recurrent back pain as past and current
medical history. A clinical evaluation of her
musculoskeletal system to include her spine found no
abnormalities.
On VA examination of her back in May 2001, the veteran
reported difficulty with her back dating back to 1993 when
she described a gradual onset of pain with no history of
injury. She complained of frequent episodes of back pain,
fairly consistently located on the right side more than the
left. It was noted that she had had no follow-up in the last
two years for her back. Following a physical and
radiological evaluation, significant for moderate
dextroconvex scoliosis of the thoracolumbar spine centered at
T11-T12, a history of low back pain was diagnosed.
In March 2002, the veteran was assessed by a private
physician, following physical and radiological examination,
as having lumbar discopathy.
The veteran was further examined by VA in September 2003 for
her history of low back pain. Following physical and
radiological examination, mechanical low back pain was
diagnosed. The veteran's examiner noted, following a review
of the veteran's claims file, that the veteran's assessments
of low back pain in service were almost universally described
as a musculoskeletal strain or a musculoskeletal back pain
and that there was never any documentation of a radicular
component. He added that it never required evaluation by any
kind of advanced imaging studies and no specialist assessment
for surgical consideration or neurological evaluation was
ever requested. He opined, as such, this would represent a
self-limiting soft tissue episode and as such would not meet
the criteria for a chronic condition.
An x-ray of the veteran's lumbar spine in October 2003 was
interpreted to reveal a mild scoliosis convex to the right.
The intervertebral disc spaces were preserved and vertebral
body heights maintained.
At the outset, the Board notes that pain is not, in and of
itself, a disability for the purposes of service connection.
Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999)
(holding that pain alone, without a diagnosed or identifiable
underlying malady or condition, does not in and of itself
constitute a disability for which service connection may be
granted), appeal dismissed, 259 F.3d 1356 (Fed. Cir. 2001).
Exclusive of scoliosis, initially noted on the veteran's VA
examination in May 2001, there are no other findings of back
pathology of any kind on VA examinations provided to the
veteran subsequent to service. Medical documentation
reflecting additional clinical findings of back pathology is
not shown until the veteran was examined by her private
physician in March 2002 and assessed as having lumbar
discopathy. The initial manifestation of the veteran's
scoliosis and lumbar disc pathology, to the extent it exists,
more than three years following service separation, is too
remote in time from service to support the claim that these
conditions are related to service absent objective evidence
to the contrary. See Maxson v. West, 12 Vet. App. 453
(1999), aff'd 230 F.3d 1330 (Fed Cir 2000) (service
incurrence may be rebutted by the absence of medical
treatment for the claimed condition for many years after
service).
In this case, absent from the record is competent evidence
linking the veteran's current disorders of the back to the
veteran's period of service or any event thereof. No medical
professional provides findings or opinions to that effect,
and the record does not reflect that the veteran has the
requisite medical background or training so as to render
competent his opinions as to questions of medical diagnosis
or etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 495
(1992).
With regard to medical evidence, a VA physician, after
reviewing the veteran's claims file, has opined, as noted
above, that a chronic back condition was not manifested in
service. Medical evidence to the contrary has not been
presented.
In the absence of a showing of a nexus between the veteran's
current back disorders and the veteran's service, a
preponderance of the evidence is against entitlement to
service connection for the claimed back disability.
B. Pelvic Bone Disability
The veteran also argues that she has a pelvic bone disability
that originated in service or is otherwise the result of her
period of active duty.
The veteran's chronological service medical records do not
specifically denote the presence of a disorder referable to
the pelvic bone. The veteran's December 1996 medical
examination for service separation is similarly negative for
findings or diagnosis of any pelvic bone disorder.
Post service there is no showing of any disorder involving
the pelvic bone. While the veteran, as a dependent of an
active duty service member, was evaluated by service
department physicians in December 1998 for a reported history
of recurrent ache in the pubic symphysis for years, an x-ray
of the pelvis revealed a normal outline of the osseous
structures with no calcifications. Normal examination was
diagnosed.
In order to be considered for service connection, a claimant
must first have a disability. See Rabideau v. Derwinski, 2
Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353
(Fed. Cir. 1998) (service connection may not be granted
unless a current disability exists). Further, symptoms
alone, without a finding of an underlying disorder, cannot be
service-connected. See Sanchez-Benitez v. Principi, 259 F.3d
1356 (Fed. Cir. 2001). Congress has specifically limited
entitlement to service-connected benefits to cases where
there is a current disability. In the absence of proof of a
present disability, there can be no valid claim. Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992).
The Board therefore finds that in the absence of any
competent medical diagnosis of a pelvic bone disability,
service connection may not be granted for this disorder. See
Brammer v. Derwinski, 3 Vet. App. 223 (1992).
As there is no current diagnosis of a pelvic bone disability,
there is also no medical opinion that purports to relate a
pelvic bone disability to the veteran's military service.
The primary evidence in support of the veteran's claim comes
from her own contentions. However, although she is competent
to report on her symptoms, as a lay person without medical
training, the veteran is not competent to relate those
symptoms to a particular diagnosis or specific etiology.
Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Accordingly,
her statements are not considered competent medical evidence
to establish the medical diagnosis of any disability or to
relate any disability to service.
As two of the elements necessary for service connection have
not been met, service connection for a pelvic bone disability
must be denied.
II. Increased Evaluation for Migraine Headaches
Disability evaluations are determined by the application of a
schedule of ratings, which represent, as far can be
practically determined, the average impairment of earning
capacity resulting from disability. 38 U.S.C.A. § 1155;
38 C.F.R. § 4.1. Separate diagnostic codes identify the
various disabilities. The VA has a duty to acknowledge and
consider all regulations that are potentially applicable
through the assertions and issues raised in the record, and
to explain the reasons and bases for its conclusion.
Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However,
where the question for consideration involves the propriety
of the initial evaluations assigned, such as here, evaluation
of the medical evidence since the grant of service connection
and consideration of the appropriateness of "staged ratings"
is required. See Fenderson v. West, 12 Vet. App. 119 (1999).
Moreover, pertinent regulations do not require that all cases
show all findings specified by the Rating Schedule, but that
findings sufficiently characteristic to identify the disease
and the resulting disability and above all, coordination of
rating with impairment of function, will be expected in all
cases. 38 C.F.R. § 4.21. Therefore, where there is a
question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria for the higher rating.
38 C.F.R. § 4.7.
The lay statements and testimony describing the symptoms of
the veteran's disabilities are deemed competent evidence.
Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However,
these statements must be considered with the clinical
evidence of record and in conjunction with the pertinent
rating criteria.
The veteran contends that her migraine headaches are more
disabling than currently evaluated.
On her initial VA examination in May 2001, the veteran
reported frontal temporal area headaches, occurring two to
three times per week, resulting in nausea and occasional
vomiting. She stated that she has photophobia.
When examined by VA in October 2003, the veteran
characterized her headaches as throbbing and moderate to
severe in intensity. The severe headaches were reported to
be associated with nausea and vomiting. She also stated that
she experienced dizziness, blurred vision, photophobia, and
phonophobia associated with all headaches. She stated that
the headaches lasted an average of six hours (with durations
from 3 to 24 hours) and that she experienced two to three
headaches per month. She reported that the headache
frequency had significantly decreased since 1999 after
starting Inderal. The veteran said that prior to that she
experienced two to three headaches per week. She related
that if possible she tried to rest and relax in a dark quiet
room and took one tablet of Excedrin migraine which
significantly improved the pain. She was on Inderal 60 mg,
twice a day, which had significantly reduced the headache
frequency with no reported side effects due to her dosage.
It was further noted that the veteran was working as a
hospital administrator part-time, and was a part-time student
studying psychology. The veteran stated that she had taken
three days off from work in the previous year secondary to
headaches and was unsure if she had missed any school days
secondary to headaches.
A VA outpatient progress note dated in August 2004 records
the veteran's complaint of migraine headaches occurring two
to three times per week since discontinuing Inderal.
The veteran's headaches have been rated by the RO as 30
percent disabling under Diagnostic Code 8100 of the rating
schedule.
Under Diagnostic Code 8100, a 30 percent evaluation is in
order for characteristic prostrating headaches occurring on
an average of once a month over the last several months, and
a 50 percent evaluation is warranted for headaches that occur
very frequently and involve prolonged and completely
prostrating attacks productive of severe economic
inadaptability.
A review of the record shows that the veteran's service-
connected headaches are adequately compensated by the 30
percent rating currently assigned under Diagnostic Code 8100.
Here, the Board observes in reference to the rating criteria,
that according to Webster's 9th New Collegiate Dictionary 946
(1985), "prostration" is defined as complete physical or
mental exhaustion. A very similar definition is found in
Dorland's Illustrated Medical Dictionary 1367 (28th Ed.
1994), in which "prostration" is defined as "extreme
exhaustion or powerlessness."
The clinical evidence summarized above, while showing the
veteran suffers headaches varying in severity on a frequent
basis, fails to indicate clinical findings of prostrating
headaches productive of severe economic inadaptability. The
medical records shows her complaints of headaches but she has
not been hospitalized as a result of her headaches and it
appears that her headaches are controlled to some degree in
frequency and severity by medications. Furthermore, while
she has a long history of headaches, her episodes of
headaches have required only minimal outpatient treatment
without any clear evidence that they have prevented her
employment. The veteran, while not currently employed, is
not shown to be unemployed as a result of her headaches. She
furthermore is active in continuing her formal education
without any report of marked interference in this pursuit due
to episodes of migraine headaches. In essence, the evidence
simply does not demonstrate that the veteran's headaches are
completely prostrating or that they involve prolonged attacks
productive of severe economic inadaptability.
In reaching this decision, the Board has considered the
doctrine of granting the benefit of the doubt to the veteran
but does not find that the evidence is approximately balanced
such as to warrant its application. The Board has also
considered whether the veteran is entitled to a "staged"
rating. At no time since service, however, have the
veteran's headaches been more severely disabling than as
reflected by the current 30 percent rating. At not time
during the period under consideration does the evidence show
that the veteran's headaches have been productive of severe
economic inadaptability.
The Board finds that the preponderance of the evidence is
against the veteran's claim for an increased rating for
migraine headaches and that claim must be denied.
ORDER
Service connection for a back disability is denied.
Service connection for a pelvic bone disability is denied.
A higher initial rating, in excess of 30 percent, for
migraine headaches is denied
____________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs